LASKOWSKI ET UX. v. RAUCHEISEN ET UX

Ejectment — Adjoining properties — Encroachment — Fence — Burden of proof.

In an action of ejectment to determine the ownership of a strip of ground, the evidence disclosed that the plaintiffs and defendants owned adjoining lots and that for more than thirty years the plaintiffs' lot had been bounded on the side towards the defendants by a fence five feet in height. The defendants removed the original fence and built a new one. The plaintiffs alleged that the new fence was constructed on their land, but the defendants averred that the fence as relocated did not encroach on the plaintiffs' property. The case was submitted to a jury and a verdict was rendered in favor of the plaintiffs. On a motion for judgment non obstante veredicto the defendants alleged that the plaintiffs had not shown at the trial that the possession of the strip by the plaintiffs and their predecessors was adverse and hostile from its inception, or that there had been continuous possession and claim of title. It was also averred that the possession of the plaintiffs and their predecessors at the beginning might have been permissive and that the encroachment, if there was one, was so slight that the defendants and their predecessors must be excused from not noticing it.

In such case there was sufficient evidence to sustain a verdict for the plaintiffs and the defendants' motion for judgment non obstante veredicto was properly refused.

No act could be more overt, or could more emphatically assert a claim to land, and a denial of the title of all others, than the enclosure of it. Standing alone this is ample evidence of a hostile, adverse taking and holding of the land.

Argued October 24, 1930.